The opinion of the court was delivered by: Louis F. Oberdorfer United States District Judge
This is an action brought under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff In Defense of Animals ("IDA"), an animal rights advocacy group, seeks access to records held by defendant the United States Department of Agriculture ("USDA" or "government" or "agency"). The records concern USDA's investigation of Huntingdon Life Sciences ("Huntingdon")-a research facility licensed to conduct animal experiments on behalf of private clients-for violations of the Animal Welfare Act. Huntingdon is a subsidiary of Life Sciences Research, Inc., ("Life Sciences") which has intervened in this litigation to protect its interest against divulging the investigatory records.
In a previous memorandum opinion and order,*fn1 Judge Richard Roberts denied, without prejudice, the parties' initial motions for summary judgment insofar as they concerned the validity of the government's claim of exemption from FOIA's disclosure requirements. He further ordered that the government produce a comprehensive Vaughn index*fn2 to assist the court in adjudicating the exemption claim, after which the parties would be permitted to file renewed summary judgment motions. Mem. Op. & Order, at 34 (Sept. 28, 2004) [dkt #31].
Thus on August 3, 2005, the government (joined by Life Sciences) filed a new Vaughn index, accompanied by a renewed motion for summary judgment. On October 28, 2005, IDA responded with its own renewed cross-motion for summary judgment. The case was transferred to this judge on May 18, 2006.
Despite an attempt by the court to resolve the dispute by mediation, see Consent to Mediation (Aug. 9, 2006) [dkt #52], the parties have been unable to do so. For the reasons that follow, an accompanying order will deny all parties' motions for summary judgment.
In 1997, USDA investigated Huntingdon for alleged violations of the Animal Welfare Act. After the investigation USDA filed an administrative complaint against Huntingdon that charged various violations of the Act and sought civil penalties. Thereafter, USDA entered into a settlement with Huntingdon: The laboratory would pay $50,000 in civil penalties and take measures to assure compliance with the Act. In 1999, USDA approved Huntingdon's activities as being in compliance with the Act and the settlement, and closed the case. See Pl.'s Stmt Of Material Facts As To Which There Is No Genuine Issue ("Pl.'s Stmt") ¶¶ 1-5 [dkt #18]; Pl. Ex. H [dkt #18].
Dissatisfied with the government's resolution of the matter, on November 20, 2000, IDA submitted a FOIA request to USDA for all records pertaining to the agency's investigation of Huntingdon. On April 13, 2001, USDA responded by disclosing the agency's report on Huntingdon's violations of the Animal Welfare Act, the administrative complaint, and the settlement agreement. It also informed IDA that any remaining responsive documents would have to await processing in the agency's FOIA queue. See Def.'s Stmt Of Material Facts As To Which There Is No Genuine Issue ("Def.'s Stmt") ¶¶ 1-2 [dkt #13].
Receiving no further response from USDA for nearly a year, IDA filed this lawsuit. See Compl. (Mar. 22, 2001) [dkt #1]. USDA then released several hundred pages of redacted and unredacted documents, and withheld several pages in full, claiming various exemptions under FOIA.
USDA also sent well over two thousand pages of responsive documents to Huntingdon to review for potential exemption from disclosure pursuant to, inter alia, FOIA Exemption 4. That exemption permits nondisclosure of "trade secrets and commercial or financial information obtained from a person and privileged or confidential."5 U.S.C. § 552(b)(4). Upon receiving Huntingdon's views on the documents, USDA decided to withhold approximately fifteen-hundred pages of documents in their entireties, in addition to hundreds more redacted pages, although the number of documents presently at issue has been reduced in the course of this litigation. See Def.'s Stmt ¶¶ 3-4.
Both parties filed initial motions for summary judgment. On September 28, 2004, Judge Roberts issued a memorandum opinion and order adjudicating the motions. He held, inter alia, that the government had failed to provide sufficient justification or explanation to review the government's claim that it was impossible for the nonexempt and exempt information to be segregated as required under this circuit's law. See Mem. Op. & Order, at 21, 29-30. Judge Roberts ordered a comprehensive Vaughn index, describing "the documents withheld (and to the extent necessary, portions thereof), the reasons for nondisclosure, and the reasons for non-segregability." Id. at 34. He deferred ruling on the merits of the exemption claims.
On August 3, 2005, the government filed a 182-page Vaughn index, attached to a renewed summary judgment motion. The Vaughn index detailed the category of records withheld; a general description of the document; whether the document was withheld in part or in full; the applicable FOIA exemption(s); and a short, specific description of the items exempted. The index did not include any segregability analysis. See Vaughn Index (Aug. 3, 2005) [dkt #39].
The government supplemented the index with the declaration of Lesia Banks, an assistant director of USDA's FOIA staff. See Banks Decl. ¶ 1 (Aug. 1, 2005) [dkt #39]. She averred that the documents at issue were all subject to FOIA Exemption 4, because the documents reveal either "the design of and methods used in scientific tests conducted by Huntingdon on behalf of its clients," or "information that characterizes the physiological and health effects of proprietary experimental compounds tested by Huntingdon on behalf of its clients." Id. ¶ 3. Disclosing such documents, according to Ms. Banks, "would cause Huntingdon substantial competitive harm." Id. As for segregability, the Banks Declaration parrots almost verbatim the first declaration of the government's other FOIA analyst, Hugh Gilmore, which Judge Roberts earlier found inadequate for purposes of performing a segregability analysis. See id. ¶¶ 3-5.
The Banks Declaration organizes the documents that remain at issue in the litigation, which the government has further reorganized into the following three ...